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Boynton.5 Chapter 5 CABLE SYSTEMS AND OPEN VIDEO SYSTEMS Art. I. Regulation of Rates for Basic Service and shall have the meanings given herein, unless Equipment, §§ 5 - 1 — 5 - 5 otherwise expressly stated. When not inconsistent Art. II. Franchising and Licensing of Cable and with the context, words used in the present tense Open Video Service Providers, §§ 5 - include the future tense; words in the plural number 6 — 5 - 30 include the singular number; and words in the Art. IIA. Genera l singular number include the plural n umber; and the Provisions, §§ 5 - 6 — 5 - 5 masculine gender includes the feminine gender. Art. IIB. Special Rules Applicable "And" and "or" may be read conjunctively or to Open Video Systems disjunctively. The words "shall" and "will" are and Open Video System mandatory, and "may" is permissive. Unless Operators, §§ 5 - 16 — 5 - 20 otherwise expressly stated, words not defined in this Art. IIC. Special Rules Applicable arti cle shall be given the meaning set forth in 47 to Cable Television USC, and, if not defined therein, their common and Stations, §§ 5 - 21 — 5 - 30 ordinary meaning. References to governmental entities (whether persons or entities) refer to those entities or their successors in authority. If specific ARTICLE I. REGULATION OF RATES FOR prov isions of law referred to herein are renumbered, BASIC S ERVICE AND EQUIPMENT then the reference shall be read to refer to the renumbered provision. References to laws, ordinances or regulations shall be interpreted broadly Sec. 5 - 1. Scope and applicability. to cover government actions, however nominated, and include l aws, ordinances and regulations now in This article governs the regulation of rates for force or hereinafter enacted or amended. basic service and equipment within the city for any franchisee which has been notified that (a) the city (2) Definitions. has been certified to regulate its basic s ervice and equipment rates; (b) the city has adopted regulations Affiliate , means a person that, (directly or governing regulation of basic service and equipment indirectly), owns or controls, is owned or controlled rates; and (c) the city desires to exercise its regulatory by, or is under common ownership or control with, authority. anoth er person. (Ord. No. 00 - 31, § 1, 6 - 20 - 00) Cable service means: Sec. 5 - 2 — 5 - 5. Reserved. 1. The one - way transmission to subscribers of (i) video programming, or (ii) other programming service, and ARTICLE II. FRANCHISING AND LICENSING OF CABLE AND OPEN 2. Subscriber interaction, if any, VIDEO SERVICE PROVIDERS which is required for the selection or use of such video programmin g or other programming service. IIA. GENERAL PROVISIONS Cable System means a facility, consisting of a set of closed transmission paths and associated Sec. 5 - 6. Definitions. signal generation, reception, and control equipment that is designed to provide cable service which (1) Generally. For the purposes of this article, includes video programmin g and which is provided to the following terms, phrases, words, and multiple subscribers within a community, but such abbreviations terms does not include (A) a facility that serves only to retransmit 2000 S - 13 1 Boynton Beach Code 2 the television signals of one or more television excavation. broadcast stations; ( B) a facility that serves subscribers without using any public right - of - way; FCC means the Federal Communications (C) a facility of a common carrier which is subject, in Commission o r its designee. whole or in part, to the provisions of Title II (Common Carriers) of the Communications Act of Franchise refers to the authorization 1934, as amended, except tha t such facility shall be granted by the city to an operator of a cable system or considered a cable system to the extent such facility an open video system, giving the operator the non - is used in the transmission of video programming exclusive right to provide, through facilities directly to subscribers, unless the extent of such use is maintained or operated upon, across, beneath, or over solely to provide interactive on - demand services; or any public right - of - way in the city, a specified service (D) any facilitie s of any electric utility used solely for within a franchise area. Any such authorization, in operating its electric utility systems; or (E) an open whatever form granted, shall not mean or include: (i) video system that is certified by the FCC. A reference any other permit or authorization required for the to a cable system includes pedestals, equipment privilege of transacting and carry ing on a business enclosures (such as equipment cabinets), amplifiers, within the city required by the ordinances and laws of pow er guards, nodes, cables, fiber optics and other the city; (ii) any permit, agreement or authorization equipment necessary to operate the cable system. required in connection with operations on public streets or property including, without limitation, Construction, operation or repair . "Const - permits and agreements for pl acing devices on or in ruction, operation or repair" and similar formulations poles, conduits or other structures, whether owned by of that term means the named actions interpreted the broadly , encompassing, among other things, installation, extension, maintenance, replacement of components, relocation, undergrounding, grading, site 2000 S - 13 preparation, adjusting, testing, make - ready, and city or a private entity, or for excavating or performing other work in or along public rights - of - way. Franchise Agreement means a contract entered into in accordance with the provisions of this chapter between the city and a franchisee that sets forth, subject to this chapter, the terms and conditions under which a franchise will be exercised. Franchise area means the area of the city that a franchise e is authorized to serve by its Franchise Agreement. Franchisee refers to a person holding a franchise issued under this chapter, or a franchise issued prior to this chapter, subject to the provisions of Section 5 - 12 hereof. License refers to the l egal authorization, terminable at will, to use a particular, discrete and limited portion of the public rights - of - way. Open Video System, or "OVS", refers to a facility consisting of a set of transmission paths and associated signal generation, receptio n, and control equipment that is designed to provide cable service, which includes video programming, which is provided to multiple subscribers within a community, and which the Federal Communications Commission or its successor has certified as compliant with Part 76 of the Rules of the Federal Communications Commission, 47 CFR 76, as amended from time - to - time. Operator, when used with reference to a system, refers to a person (A) who provides service over a cable system or an open video system and dir ectly or through one or more affiliates owns a significant interest in such facility; or (B) who otherwise controls or is responsible for, through any arrangement, the management and operation of such a facility. Person includes any individual, corpor ation, partnership, association, joint stock company, trust, or any other legal entity, but not the city. Public rights - of - way means the surface, the air space above the surface, and the area below the surface of any public street, highway, lane, path, Cable Systems and Open Video Systems 3 alley, sidewalk, boulevard, drive, bridge, tunnel, a cable system or providing cable service; an operator parkway, waterway, public easement, or similar of an open video system must o btain a franchise property in which the city now or hereafter holds any before constructing an open video system or property interest, which, consistent with the purposes providing services via an open video system. No f or which it was dedicated, may be used for the franchise shall become effective without the purpose of constructing, operating and repairing a franchisee entering into a franchise agreement with cable system or open video system. Public rights - of - the city. The fact that a cable system or open vi deo way do not include buildings, parks, or other property system may be used for multiple purposes does not owned or leased by the city. No reference herein, o r obviate the need to obtain a franchise, license, or in any franchise agreement, to a public right - of - way other authorization for those other purposes. By way shall be deemed to be a representation or guarantee of illustration and not limitation, a cable operator of a by the city that its interest or other right to control the cable system must obtain a cable franch ise, and, use of such property is sufficient to permit its use for should it intend to provide telecommunications such purposes, and a franchisee shall be deemed to services over the same facilities, it must comply with gain only those rights to use as are properly in the requirements applicable to providers of city and as the city may have the undisputed right and telecommunications services or to operators of power to give. telecommunication facilities. Telecommunications services means the (2) Purpose and charac teristics . The purpose transmission, for hire, of information in electronic or of requiring authorizations by service is to ensure as optical form, inc luding, but not limited to voice, far as possible and appropriate that persons providing video, or data, whether or not the transmission similar services are treated similarly, considering medium is owned by the provider itself. differences in circumstances, and to comply with "Telecommunications services" includes telephone requirements of fede ral law which may require the service but does not include over - the - air broadcasts to city to separate its authority over cable systems or the public - at - large from fac ilities licensed by the open video systems from its authority over other Federal Communications Commission or any providers of telecommunications services, the city successor thereto. shall require individual franchises for the provision of particular servi ces. The revocation of a franchise for Transfer means any transaction in which: one particular service in and of itself will not affect (i) all or a portion of the cable system or open video the authority of a franchise holder to continue to system is sold or assigned (except a sale or provide services for which it holds other franchises. assignment that results i n removal of a particular No franchise shall be exclusive and competition shall portion of the facility from the public rights - of - way); be encouraged. The issuance of a franchise shall not (ii) there is any change, acquisition, or direct or affect the city's right to itself construct, operate, or indirect transfer of control of the franchisee or repair any cable system or open video system, with or licensee; or (iii) the rights and/or obligations held by without a franchise. the franchisee or licensee under the franchise or license are transferred, sold, assigned, or leased, in (3) Exceptions . A franchise requirement may whole or in part, directly or indirectly, to another be waived for a cable syst em or an open video system party. In succeeding provisions of this chapter, all that is not designed to provide service in the city, and these activities are referred to as franchise transfers. that does not provide service in the city. For such (Or d. No. 00 - 31, § 1, 6 - 20 - 00) facilities, the city may issue a license. Every license shall require the licensee to obtain a franchise if it is determ ined that the license is being used in a manner Sec. 5 - 7. Franchise required. that creates a competitive advantage for that operator or otherwise unduly discriminates in favor of such (1) Every operator must obtain . A cable operator. In any case, the license must provide that if operator must obtain a franchise prior to constructing limitations of license are violated, the lic ensee must pay the maximum franchise fee required by Articles 2000 S - 13 Boynton Beach Code 4 IIB and IIC and otherwise bring itself into compliance with this chapter. 2000 S - 13 (4) Nature of grant . Neither a franchise nor a license shall convey title, equitable or legal, in the rights - of - way. The right is only the personal right to occupy rights - of - way, for the purposes and for the period stated in the franchise or license; the right may not be subdivided or subleased. (Ord. No. 00 - 31, § 1, 6 - 20 - 00) Penalty, see S ection 5 - 11 Sec. 5 - 8. Compensation required. (1) Every operator must pay . Every cable operator and every operator of an open video system must pay a fee except as provided in Section 5 - 8(2). Except as provided in Section 5 - 8(2), this fee shall be bas ed upon a percentage of gross revenues. (2) Exceptions . The franchise fees required under Articles IIB and IIC need not be paid if: (A) State law or charter requires otherwise; or during any transition period for a current franchise holder. In case s subject to this exception, the highest permissible fee shall be paid. (B) In the case of a cable system or an open video system that is not designed to provide service in the city, and that does not provide service in the city. The city shall establi sh a fee in lieu of the fees specified in Articles IIB and IIC that recovers an amount equivalent to the fair market value of the property used in the City and reserves the right to charge additional fees as contemplated by Section 5 - 8(4). (3) Applicat ion to persons that provide different types of services . The fact that a fee is paid on one type of service provided over a cable or open video system, does not excuse an operator from its duty to pay fees on other types of services provided over that fa cility. As an example, and not as a limitation of the foregoing, a cable operator that pays a franchise fee on revenues derived from the provision of cable services must pay the fees imposed upon telecommunication service providers to the ex tent that it provides telecommunications services; likewise, the operator of a telecommunications facility must pay a franchise fee to the extent it provides cable services to subscribers via a cable system. (4) General rules for payment of fees. ( A) Unless otherwise specified in a franchise agreement or a license, franchise and license fees shall be paid to the city quarterly, and not later than forty - five (45) calendar days after the end of each calendar quarter. (B) Unless a franchise agreemen t or license provides otherwise, each franchise or license fee payment shall be accompanied by a statement showing the manner in which the fee was calculated. (C) No acceptance by the city of any franchise or license fee shall be construed as an accord that the amount paid is in fact the correct amount, nor shall such acceptance of such franchise fee payment be construed as a release of any claim the city may have for additional sums payable. (D) The franchise or license fee payment is not a payment i n lieu of any tax, fee or other assessment except as specifically provided in this title, or as required by applicable law. By way of example, and not limitation, permit fees and business license taxes are not waived and remain applicable, and other fees and assessments to recover costs associated with operating and maintaining the right - of - way that may be established from time to time by resolution of the city commission. (E) Within ninety (90) calendar days following the end of the calendar year, ea ch person which paid a franchise fee based upon gross revenues shall submit a statement, attested to by a certified public accountant or the chief financial officer of such person, setting forth gross revenues of the cable or open video system, by categor y, and describing what revenues were included and what revenues, if any, generated or derived from operations in the city were excluded in the fee calculation, and any adjustments made to gross revenues. If payments are late, in addition to paying any appl icable penalties or damages, the person that owes the fee shall pay Cable Systems and Open Video Systems 5 interest on the amount owed at the statutory interest limitation, this includes zoning codes and safety rates applicable to judgments. codes. In addition, the construction, operation and repair shall be performed in a manner consistent with (F) The city may, upon five (5) business high industry stan dards. Persons engaged in the days advan ce written notice, inspect and examine any construc - tion, operation or repair of cable or open and all books and records reasonably necessary to the video systems shall exercise reasonable care in the determination of whether fees have been accurately performance of all their activities, and use commonly computed and paid. accepted methods and devices for preventing failures and accidents t hat are likely to cause damage, injury, (G) Notwithstanding the foregoing, in the or nuisance to the public or to property. event that a person that is obligated to pay a fee ceases to provide service for any reason (including as (B) Construction, operation or repair of a a result of a transfer), such person shall make a final cable or open video system shall not commence until payment of any amounts owed to the city within written permits, if required, have been properly filed ninety (90) calendar days of the date its operations in for and obtained fro m the proper city officials and all the city cease, and shall provid e a statement of gross required permits and associated permit fees paid. In revenues for the calendar year through the dates any permit so issued, the city may impose as a operations ceased, which statement shall contain the condition of the granting of the permit such information and certification required by Section 5 - conditions and regulations as may be necessary to the 8(4)(E). manage - ment of the ri ght - of - way, including, by way (Ord. No. 00 - 31, § 1, 6 - 20 - 00) Penalty, see Section of example and not limitation, for the purpose of 5 - 11 protecting any structures in the public rights - of - way, for the proper restoration of such public rights - of - way and structures, and for the protection of the city and Sec. 5 - 9. General conditions upon use of the public and the continuity of pedestrian and rights - of - way. vehicular traffic. (1) Responsibility for costs. Except as (C) Without limiting the foregoing, cable expressly provided otherwise, any act that a cable or or open video systems shall be constructed, operated open video systems operator, its contractors or and repaired in accordance with good engineering subcontractors are required to perform under this practices. No work on the facilities shall be section shal l be performed at their cost. If a cable or perfor med except by experienced and properly open video systems operator fails to perform work trained personnel. The operator of a cable or open that it is required to perform within the time provided video system is responsible for all the acts of its for performance, the city may perform the work, and contractors and subcontractors, and for ensuring that bill the cable or open video systems operator therefor . its contractors and subcontractors perform all work in The cable or open video systems operator shall pay comp liance with this chapter and any applicable the amounts billed within thirty (30) calendar days. franchise agreement. (2) Construction procedures and placement of (D) Operators of cable or open video facilities; obligation to minimize interference with use systems must follow city - established requirements for of rights - of - way . placement of facilities in rights - of - way, and must in any event install facilities in a mann er that minimizes (A) The construction, operation and repair interference with the use of the rights - of - way by of cable or open video systems are subject to the others, including others that may be installing supervision of all of the authorities of the city that communications facilities. The city may require that have jurisdiction in such matters, and shall be facilities be installed at a particular time, place, or performed in compliance with all laws, ordinances, manner as a condition of access to a particular right - departmental rules and regulat ions and practices of - way, and may require a person using the right - of - affecting such system. By way of example, and not 2000 S - 13 Boynton Beach Code 6 way to cooperate with others to minimize adverse water pipes, power lines, signal lines, tracks, or any impacts on the right - of - way through joint trenching other type of government - owned communications or and other arrangements. 2000 S - 13 (E) To the extent poss ible, operators of cable or open video system, p ublic work or improve - cable or open video systems shall use existing poles ment of any government - owned utility; public right - and existing conduit in installing their system. In no of - way vacation; or for any other purpose where the case may additional poles be installed in the right - of - work involved would be aided by the removal or way without the permission of the city; any person relocation of the cable or open video system. who is permitted to in stall poles must lease capacity Collectively, such matters are referre d to below as the on those poles to others, at a rate not higher than the “public work.” rate that would be permitted if 47 USC 224 applied. 1. Except in the case of (F) Except as city may direct otherwise, emergencies, the city shall provide written notice cable or open video systems may be constructed describing where the public work is to be performed overhead where poles ex ist and electric or lines of a at least thirty (30) calendar days prior to the deadline local exchange carrier franchised before 1990 are by which a cable or open video sys tem operator must overhead, but where both electric or such telephone protect, support, temporarily disconnect, relocate or lines are underground, or are being initially placed remove its facilities. A cable or open video system underground (whether voluntarily or at the city's operator may seek an extension of the time to direction), other ca ble or open video systems shall be perform such tasks where they cannot be performed constructed underground. Whenever and wherever in thirty (30) calendar days and su ch request for an the owner of the poles upon which aerial facilities are extension shall not be unreasonably refused. located moves its plant from overhead to underground placement in an area, all cable or open 2. In the event of an emergency, or video systems in that are a shall be similarly moved where a cable or open video system creates or is underground. contributing to an imminent danger to health, safety, or property, the city may protect, support, tempo rarily (G) Any and all public rights - of - way, disconnect, remove, or relocate any or all parts of the public property, or private property that is disturbed cable or open video system without prior notice, and or damaged during the construction, operation or charge the cable or open video system operator for repair of a cable or open video system shall be costs incurred. In case of such emergency, where in promptly repaired b y the cable or open video system's the judgment of the city, conditions permit, the city operator. shall reasonably attempt to notify the cable or open video system operator. (H) Tree trimming shall be performed in strict accordance with the City Code. (B) If any person that is authorized to place facilities in the right - of - way requests another (3) Relocation of facilities. cable or open video system operator receiving the request to pro tect, support, temporarily disconnect, (A) A cable or open video system operator remove, or relocate its facilities to accommodate the shall, by a time specified by the city, protect, supp ort, construction, operation, or repair of the facilities of temporarily disconnect, relocate, or remove any of its such other person, the cable or open video system property when required by the city or any other operator shall, after thirty (30) calendar days' advance governmental entity by reason of traffic conditions; written notice, take action to effect the necessary public safety; public right - of - way construction; changes requested. Unless the matter is governed by public right - of - way repair (including resurfac ing or a valid contract or a state or federal law or regulation, widening); change of public right - of - way grade; or in other cases where the cable or open video construction, installation or repair of sewers, drains, system that is being requested to move was no t properly installed, the reasonable cost of the same relocation and at no charge to the city. shall be borne by the party requesting the protection, support, temporary discon - nection, removal, or Cable Systems and Open Video Systems 7 (C) A cable or open video system 2000 S - 13 operator shall, on the request of any person holding a valid permit issued by a governmental authority, temporarily raise or lower its wires to permit the moving of buildings or other objects. The expense of such tempora ry removal or raising or lowering of wires shall be paid by the person requesting the same. A cable or open video system operator shall be given not less than seven (7) calendar days advance notice to arrange for such temporary wire changes. (D) A cabl e or open video system operator may abandon any property in place upon notice to the city, unless the city determines, in the exercise of its reasonable discretion within ninety (90) calendar days of the notice of abandonment from the operator, that the sa fety, appearance, functioning or use of the public right - of - way and facilities in the public right - of - way will be adversely affected thereby, in which case the operator must remove its property within a reasonable period of time specified by the city. (E) If a state statute requires the city to compensate a person for the cost of relocation or removal, nothing in this chapter shall be read to abrogate any right such person may have to that compensation. (4) Facility subject to inspection; operator m ust provide information. Every cable or open video system shall be subject to the right of periodic inspection and testing by the city to determine compliance with the provisions of this chapter, a franchise or license agreement, or other applicable law. The city shall have the right, upon written request, to be notified and present when the cable or open video system is tested by the operator for its semi - annual FCC testing. Each operator must respond to requests for information regarding its system and p lans for the system as the city may from time to time issue, including requests for information regarding its plans for construction, operation and repair and the purposes for which the plant is being constructed, operated or repaired. (5) Underground services alert . Each operator of a cable or open video system that places facilities underground shall be a member of the regional notification center for subsurface installations (underground services alert) and shall field mark the locations of its underground cable or open video system upon request. The operator shall locate its facilities for the city at no charge. (6) Publicizing Work. (A) A cable or open video system operator shall publicize the initial build or any substantial reb uild, upgrade, or extension of its facility that involves work in public rights - of - way in each affected neighborhood at least one (1) week prior to commencement of that work by causing written notice of such construction work to be delivered to the city an d by notifying those persons whose property is within 300 feet of the work in at least two (2) of the following ways: by telephone, in person, by mail, by distribution of flyers to residences, by publication in local newspapers, or in any other manner reas onably calculated to provide adequate notice. Apart from any initial build or substantial rebuild or upgrade, any underground construction will be publicized in accordance with applicable notice requirements. In other cases, before entering onto any privat e property to perform work, a cable or open video system operator shall use its best efforts to contact the property owner or (in the case of residential property) the resident at least one (1) day in advance, and describe the work to be performed. (B) Each cable or open video system owner shall provide the city a plan for any initial system construction, or for any substantial rebuild, upgrade or extension of its facility, which shall show its timetable for construction of each phase of the project, and the areas of the city that will be affected. (7) No discrimination. (A) A cable or open video system operator shall not deny service, deny access, or otherwise discriminate against subscribers, programmers, or residents of the city on the basis of r ace, color, creed, national origin, sex, age, conditions of physical handicap, religion, ethnic background, marital status, or sexual orientation. (B) A cable or open video system operator shall not discriminate among persons or the city or take any ret aliatory action against a person or the city because of that entity's exercise of any right it may Boynton Beach Code 8 have under federal, state, or local law, nor may the 2000 S - 13 operator require a person or the city to waive such rights as a condition of taking service. (C) A cable or open video system operator shall not deny access or levy different rates and charges on any group of potential customers because of the income of the residents of the local area in which such group resides. (D) A cable or open video system operator shall comply with all federal, state, and local laws and regulations governing equal employment opportu - nities, as the same may be from time to time amended. (Ord. No. 00 - 31, § 1, 6 - 20 - 00) Penalty, see Section 5 - 11 Sec. 5 - 10. Protection of the city and residents. (1) Indemnification . (A) The city may not enter into any franchise, or otherwise authorize any cable or open video system operator to use the public rights - of - way, until and unless the city obtains an adequa te indemnity from such operator. The indemnity must at least: 1. Release the city from and against any and all liability and responsibility in or arising out of the construction, operation or maintenance of the cable or open video system. 2. Indemnify and hold harmless the city, its trustees, elected and appointed officers, agents, and employees, from and against any and all claims, demands, or causes of action of whatsoever kind or nature, and the resulting losses, costs, expenses, reasonable attorneys' fees, reasonable paralegal expenses, liabilities, damages, orders, judgments, or decrees, sustained by the city or any third party arising out of, or by reason of, or resulting from or of the acts, errors, or omissions of the cable or open vide o system operator, or its agents, independent contractors or employees related to or in any way arising out of the construction, operation or repair of the facility. 3. Provide that the covenants and representations relating to the indemn ification provision shall survive the term of any agreement and continue in full force and effect as to the party's responsibility to indemnify. (2) Insurance. The city may not enter into any franchise, or otherwise authorize any cable or open video sys tem operator to use the public rights - of - way, until and unless the city obtains assurance that such operator (and those acting on its behalf) have adequate insurance. At a minimum, the following requirements must be satisfied. (A) A cable or open video system operator shall not commence construction or operation of the facility without obtaining all insurance required under this section and approval of such insurance by Risk Management of the city, nor shall a cable or open video system operator allow a ny contractor or subcontractor to commence work on its contract or subcontract until all similar insurance required of the same has been obtained and approved. The required insurance must be obtained and maintained for the entire period the cable or open v ideo system operator has facilities in the right - of - way, and for a period thereafter as specified in the minimum coverages described below. If the operator, its contractors or subcontractors do not have the required insurance, the city may order such enti ties to stop operations until the insurance is obtained and approved. (B) Certificates of insurance, reflecting evidence of the required insurance, shall be filed with the Risk Manager Coordinator. For entities that are entering the market, the certifi cates shall be filed prior to the commencement of construction and once a year thereafter, and as provided below in the event of a lapse in coverage. For entities that have facilities in the right - of - way as of the effective date of this chapter, the certif icate shall be filed within sixty (60) calendar days of the adoption of this chapter, annually thereafter, and as provided below in the event of a lapse in coverage, unless a pre - existing franchise agreement provides for filing of certificates in a differe nt manner. Cable Systems and Open Video Systems 9 (C) These certificates of insurance shall to the city. Policies shall be issued by companies contain a provision that coverages afforded under authorized to do business under the laws of the State these policies will not be canceled until at least thirty of Florida. Financial ratings must be no less than "A" (30) calendar days prior written notice has be en given in the latest edition of Best's Key Rating Guide , published by A.M. Best Guide. Completed Operations and Products Liabi lity shall be maintained for two (2) years after (D) In the event that the insurance the termination of the franchise agreement or license certificate provided indicates that the insurance shall agreement (in the case of the cable or open video terminate or lapse during the period of this contract, system operator) or completion of the work for the then in that event, the cable or open video system cable or open video system operator (in the case of a operator shall furnish, at least thirty (30) calendar contractor or subcontractor). days pr ior to the expiration of the date of such insurance, a renewed certificate of insurance as proof Property Damage Liability Insurance shall that equal and like coverage for the balance of the include coverage for the following hazards: X – period of the franchise or license under which cable explosion, C – Collapse, U – underground. or open video system operates. 2. Workers' Compensation (E) A cable or open video system operator, Insurance shall be maintained during the life of this and its contractors or subcontractors engaged in work contr act to comply with statutory limits for all on the operator's behalf in, on, under or over public employees, and in the case any work is sublet, each rights - of - way, shall maintain the following minimum cable or open video system operator shall require the insurance: subcontractors similarly to provide Workers' Compensation Insurance for all the latter's 1. Comprehensive General Liability employees, unless such employees are covered by the Insurance to cover lia bility bodily injury and property protection afforded by each cable or open video damage. Exposures to be covered are: premises, system operator. Each cable or open video system operations, products/completed operations, and operator and its contractors and subcontractors shall certain contracts. Coverage must be written on an maintain, during the life of this policy, Employers occurrence basis, with the following limits of Liability Insuran ce. The following limits must be liability: maintained: Bodily Injury. Workers' Compensation: Statutory Each Occurrence: $1,000,000 Employer's Liability: $500,000 per Annual Aggregate: $3,000,000 Property Damage. Each Occurrence: $1,000,000 Annual Aggregate: $3,000,000 Personal Injury. Annual Aggregate: $3,000,000 3. Comprehensive Auto Liability. 2000 S - 13 Bodily Injury. Each Occurrence: $1,000,000 Annual Aggregate: $3,000,000 Property Damage. Each Occurrence: $1,000,000 Annual Aggregate: $3,000,000 Coverage shall include owned, hired and non - owned vehicles. Boynton Beach Code 10 (F) Each cable or open video system security fund/letter of credit is not necessary to secure operator shall hold the city, its agents, a nd the required performance. The city may, from time to employees, harmless on account of claims for time, upon reasonable notice and after the cable o r damages to persons, property or premises arising out open video system of its construction, operation or repair of its cable or open video system and name the city as an additional 2000 S - 13 insured. (3) Performance/payment bonds . Eve ry operator of a cable or open video system may be required to obtain performance bonds and, if necessary, payment bonds to ensure the faithful performance of its responsibilities under this chapter and any franchise agreement or license for an initial bu ild, any substantial rebuild, upgrade, or extension of its facility, or when construction plans show that there would be more than one thousand (1,000) feet of open trenching in the right - of - way at any given time. The amount of the performance and payment bonds shall be set by the city manager in light of the nature of the work to be performed, and is not in lieu of any additional bonds that may be required through the permitting process. The bond shall be in a form acceptable to the city attorney. The city may, from time to time, increase the amount of the required performance bond to reflect increased risks to the city and to the public. (4) Security fund . Every cable or open video system operator shall establish a $25,000 cash security fund, or provid e the city an irrevocable letter of credit in the same amount, to secure the payment of fees owed, to secure any other performance promised in a franchise agreement, and to pay any taxes, fees or liens owed to the city. The letter of credit shall be in a f orm and with an institution acceptable to the city attorney and director of financial management. Should the city draw upon the cash security fund or letter of credit, it shall promptly notify the cable or open video system operator, and the cable or open video system operator shall promptly restore the fund or the letter of credit to the full required amount. This security fund/letter of credit may be waived or reduced by the city for a franchisee or licensee where the city determines in its discretion th at a particular franchisee's or licensee's operations are sufficiently limited that a $25,000 operator has had an opportunity to respond thereto, increase the amount of the required security fund/letter of credit to reflect increased risks to the city and to the public. (Ord. No. 00 - 31, § 1, 6 - 20 - 00) Penalty, see S ection 5 - 11 Sec. 5 - 11. Enforcement and remedies. (1) Administration. The city manager or its designee is responsible for enforcing and administering this chapter, and the city manager or its designee is authorized to give any notice required by law or under any franchise agreement, including by way of example and not limitation, a notice required under 47 USC 626. The city manager or its designee is also authorized to seek information from any cable or open video system operator, to establish forms fo r submission of applications and other information, and to take all other actions necessary or appropriate to the administration of this chapter. Franchises may only be issued or revoked by action of the city commission. (2) Application for a franchise. (A) An application must be filed for an initial franchise or license; for a transfer; or for renewal of a franchise or license. Each entity that is required to hold a franchise or license must submit an application therefore to the financial managemen t department or as otherwise designated by the city, in accordance with the requirements of Articles IIB and IIC. To be accepted for filing, an original and six (6) copies of a complete application must be submitted to the purchasing division, financial ma nagement department. All applications shall be available for public inspection. All applications shall include the names and addresses of persons authorized to act on behalf of the applicant with respect to the application. (B) An application may be fil ed by any person on that person's own initiative or in response to a request for proposals. The purchasing adminis - trator is authorized to issue requests for proposals from time to time. (C) Every application shall be accompanied by a nonrefundable fe e in amounts established from time to time by the city commission by resolution. Cable Systems and Open Video Systems 11 (D) An applicant that is awarded a 2000 S - 13 franchise or license shall pay to the city a sum of money sufficient to reimburse it for all publication expenses incurred by it in connection with the granting of a franchise or license pursuant to the provisions of this article. Such payment shall be made within thirty (30) calendar days after the city furnishes the franchisee or licensee wi th a written statement of such expenses by delivery of same to the city clerk. (E) Notwithstanding any other provision of this chapter, pledges in trust or mortgages of the assets of a franchised or licensed cable or open video system to secure the cons truction, operation or repair of the system may be made without application and without the city's prior consent; except that no such arrangement may be made if it would in any respect under any condition prevent the cable or open video system operator or any successor from complying with the franchise or license and applicable law, nor may any such arrangement permit a third party to succeed to the interest of the operator, or to own or control the cable or open video system without the prior consent of th e city. Any mortgage, pledge or lease shall be subject and subordinate to the rights of the city under this chapter or other applicable law. (3) Minimum contents of every franchise or license . In addition to satisfying the other applicable requirements of Article II, every franchise agreement or license for a cable or open video system shall contain the following provisions: (A) The franchise agreement or license shall provide that neither the granting of any franchise or license, or any provision the reof, shall constitute a waiver or bar to the exercise of any governmental right or power, police power, or regulatory power of the city as may exist at the time the franchise is issued or thereafter be obtained. (B) The franchise agreement or license s hall only authorize occupancy of the right - of - way to provide the services and for the purposes described in the franchise or license. (C) A franchise or license shall be a privilege that is held in the public trust and personal to the original franchise e. The franchise agreement or license shall ensure that no transfer of the franchise or license may occur, directly or indirectly, without the prior consent of the city; except as contemplated by Section 5 - 11(2)(E). (D) The franchise agreeme nt or license shall ensure that any person placing a cable or open video system in the right - of - way will not discriminate in hiring, in contracting, or in the provision of services. (E) The franchise agreement or license shall contain appropriate provi sions for enforcement, compensation, and protection of the public, consistent with the other provisions of this chapter. (F) The franchise or license shall be for a specified term, set forth in the franchise agreement or license. No franchise issued un der this chapter shall be for a term of longer than ten (10) years; no license issued under this chapter shall be for a term of longer than five (5) years. (4) Penalties . Any person who violates any provision of this chapter shall be fined for each da y the violation continues in accordance with Chapter 162 of the 1996 Florida Statutes, as amended. (5) Revocation, reduction of term, or forfeiture of franchise or license . (A) Licenses shall be revocable at the will of the city commission. (B) W here, after notice and providing the franchisee an opportunity to be heard (if such opportunity is timely requested by a franchisee), the city finds that the facility is being operated in violation of this chapter or substantial violation of the terms of t he franchise agreement, the city may make an appropriate reduction in the remaining term of the franchise or to revoke the franchise. The city manager is authorized to establish and conduct a proceeding that comports with the requirements of this Section 5 - 11(5)(B), and to issue a recommended decision, but any such decision may be appealed to the city commission. Any appeal must be filed within thirty (30) calendar days of the decision of the city manager or it shall be deemed waived. Notwithstanding the Boynton Beach Code 12 foregoing, the franchise may not be revoked unless the franchisee: period: 1. Was given notice of the default; 1. Such assignment, receivership or 2. Was given thirty (30) calendar trusteeship has been vacated; or days to cure the default; and 2. Such assignee, receiver or trustee 3. Failed to cure the default, or to has fully complied with the terms and conditions of propose a s chedule for curing the default acceptable this chapter and the franchise agr eement and has to the city where it is impossible to cure the default in executed an agreement, approved by a court having thirty (30) calendar days. jurisdiction, assuming and agreeing to be bound by the terms and conditions of this chapter and the The required notice may be given before franchise agreement. the city conducts the proceeding required by this section. No opportunity to cure is required for (F) Notwithstanding the foregoing, in the repeated violations, and fraud shall be deemed event of foreclosure or o ther judicial sale of any of incurable. the facilities, equipment or property of a franchisee, the city may revoke the franchise, following a public (C) Notwithstanding the foregoing, the city hearing before the city commission, by serving notice may declare a franchise forfeited where the upon the franchisee and the successful bidder at the franchisee: sale, in wh ich event the franchise and all rights and privileges of the franchise will be revoked and will 1. Fails to begin to exercise its rights terminate thirty (30) calendar days after serving such under the franchise within a peri od specified in the notice, unless: franchise agreement; 1. The city has approved the transfer 2. Stops providing service it is of the franchise to the successful bidder; and required to provide in the franchise; 2. The successful bidder has coven - 3. Without the prior consent of the anted and agreed with the city to assume and be city, transfers the franchise; or bound by the terms and conditions of the franchise agreement and this chapter. 4. Fails to pay any fees required hereunder, including, but not limited to, application (6) Effect of termination or forfeiture . Upon fees, permit fees, or franchise fees. termination or forfeiture of a license or franchise, whether by action of the city as provided above, or by (D) The city shall give a franchisee thirty passage of time, the franchisee or licensee shall be (30) calendar days notice of an intent to declare a obligated to cease using the cable or open video franchise forfeited, and shall provide the franchisee system for the purposes authorized by the franchise. an opportunity to show cause why t he franchise The city may either take possessi on of some or all of should not be forfeited. the licensee's or franchisee's facilities in the public rights - of - way after furnishing the cable or open video (E) Notwithstanding the foregoing, any system operator with written notice and granting the franchise may, at the option of the city following a cable or open video system operator a reasonable public hearing before the city commission, be period of time, but in no event more than thirty (30) revoked one hundred twenty (120) calendar days after calendar days, to remove same, or require the licensee an assignment for the be nefit of creditors or the or franchisee or its bonding company to remove some appointment of a receiver or trustee to take over the business of the franchisee, whether in a receivership, 2000 S - 13 reorganization, bankruptcy assignment for the benefit of creditors, or other action or proceeding, unless with in that one hundred twenty (120) calendar day Cable Systems and Open Video Systems 13 or all of the licensee's or franchisee's facilities from derived from the the public r ights - of - way and restore the public rights - of - way to their proper condition. Should the 2000 S - 13 franchisee or licensee neglect, refuse, or fail to remove such facility, the city may remove the facility at the expense of the franchisee or licensee. The obligation o f the licensee or franchisee to remove shall survive the termination of the franchise or license for a period of two (2) years. Provided that the city may not take possession of, or require the franchisee or licensee to remove, any facilities that are used to provide another service for which the franchisee holds a valid franchise or license issued by the city. (7) Remedies cumulative. All remedies under this chapter and any franchise agreement are cumulative unless otherwise expressly stated. The exerc ise of one remedy shall not foreclose use of another, nor shall the exercise of a remedy or the payment of liquidated damages or penalties relieve a cable or open video system operator of its obligations to comply with its franchise. Remedies may be used s ingly or in combination; in addition, the city may exercise any rights it has at law or equity. Recovery by the city of any amounts under insurance, the performance bond, the security fund or letter of credit, or otherwise does not limit a cable or open vi deo system operator's duty to indemnify the city in any way; nor shall such recovery relieve a cable or open video system operator of its obligations under a franchise, limit the amounts owed to the city, or in any respect prevent the city from exercising any other right or remedy it may have. Nothing herein shall be read to authorize the double - recovery of damages. (8) Access to books and records . (A) Each cable or open video system operator shall, upon thirty (30) calendar days, if reasonably possib le, but in no event less than five (5) business days written notice, provide the city access to all books and records related to the construction, operation, or repair of the cable or open video system so that the city may inspect these books and records. Any and all non - proprietary or non - confidential books and records may be copied by the city. The operators' obligation includes the obligation to produce all books and records related to revenues operation of the cable or ope n video system. An operator is responsible for obtaining or maintaining the necessary possession or control of all books and records related to the construction, operation or repair of the cable or open video system, so that it can produce the documents up on request. Books and records must be maintained for a period of five (5) years, except that any record that is a public record must be maintained for the period required by state law; and a franchise may specify a shorter period for certain categories of voluminous books and records where the information contained therein can be derived simply from other materials. (B) For purposes of this chapter, the terms "books and records" shall be read expansively to include information in whatever format stored . Books and records requested shall be produced to the city at City Hall, except by agreement or pursuant to Section 5 - 11(8)(C). (C) If any books and records are too voluminous, or for security reasons cannot be copied and moved, then a cable or open video system operator may request that the inspection take place at some other location mutually agreed to by the city and the operator, provided that the operator must make necessary arrangements for copying documents selected by the city after its revie w; and the operator must pay all travel and additional copying expenses incurred by the city in inspecting those documents or having those documents inspected by its designee. (D) Without limiting the foregoing, the operator of a cable or open video sys tem shall provide the city the following within ten (10) calendar days of their receipt or (in the case of documents created by the operator or its affiliate) filing: 1. Notices of deficiency or forfeiture related to the operation of the cable or open video system, and 2. Copies of any request for protec - tion under bankruptcy laws, or any judgment related to a declaration of bankruptcy by the franchisee or by any partnership or corporation that owns or controls the franchisee directly or indirec tly. Boynton Beach Code 14 (9) Retention of records; relation to privacy rights. Each cable or open video system operator shall take all reasonable steps required, if any, to ensure that it is able to provide the city all information manager, and the city commission may adjust, settle which must be provided or may be requested under or compromise any controversy or cancel any charge this chapter, a franchise agreement, or applicable law, arising from the operations of any franchisee or from including by providing appropriate subscriber privacy any provision of this article. notices. Each operator shall be responsible for reacting any data that applicable law prevents it from prov iding (14) No waiver . The failure of the city to insist to the city. Nothing in this section shall be read to on time ly performance or compliance by any person require an operator to violate state or federal law holding a license or franchise shall not constitute a protecting subscriber privacy. waiver of the city's right to later insist on timely performance or compliance by that person or any (10) Reports . The city may require operators of other person holding such a license or franchise. a cable or open video system to maintain records, and to prep are reports relevant to determining the (15) Ordinance not a contract . The city compliance of the cable or open video system operator expressly reserves the right to amend this chapter with the terms and conditions of this chapter and a from time to time in the exercise of its lawful powers. franchise agreement. This and any ordinance adopting provisions of this chapter shall not be construed to be a contract. (11) Maps . Each cable or open video system (Ord. No. 0 0 - 31, § 1, 6 - 20 - 00; Ord. No. 02 - 033, § 1, operator shall maintain accurate maps an d improve - 8 - 20 - 02) ment plans which show the location, size, and a general description of all facilities installed in the rights - of - way and any power supply sources Sec. 5 - 12. Transitional provisions. (including voltages and connections). Maps shall be based upon post - construction (as - built) inspecti on to (1) Persons operating without a franchise or verify location. The operator of each cable or open license . The operator of any facility, the operation of video system shall provide a map to the city showing which is required to be franchised or licensed under the location of its facilities, in such detail and scale as this chapt er, shall have three months from the may be directed by the city engineer. New maps shall effective date of this chapter to file one or more be promptly submitted to the cit y when the facility applications for a franchise or a license under this expands or is relocated. Copies of maps shall be chapter. provided on disk, in a format specified by the city engineer. (2) Persons holding franchises or licenses. Any person holding an outstanding franchise from the (12) Compliance with laws. Each franchisee city f or a cable system to provide specified services shall comply with all applicable laws heretofore and may continue to operate under the existing franchise hereafter adopted or es tablished during the entire term to the conclusion of its present term (but not any of its franchise. renewal or extension thereof) with respect to those activities expressly authorized by the franchise or (13) Reservation of authority. The city may do license; provided, however, that such franchisee or all things which are necessary and convenient in the licensee may elect at any time to apply for a exercise of its jurisdiction under this article. The city superseding franchise or license under this chapter, manager or its designee is hereby authorize d and and must seek additional franchises or licenses to empowered to adjust, settle or compromise any provide other services. Provided further, that licens es controversy involving performance or charges arising that are revocable at will may be revoked by the city, from the operations of any franchisee under this article and the licensee may be required to obtain a new on behalf of the city. The city commission may accept, license under this chapter. reject or modify the decision of the ci ty (3) Persons with pending applications . Pending applications shall be subject to this chapter. A person 2002 S - 18 Cable Systems and Open Video Systems 15 with a pending application shall be provided thirty (30) calendar days from the effective date of this chapter to submit additional information to comply 2000 S - 13 with the requirements of this governing applications chap ter. (Ord. No. 00 - 31, § 1, 6 - 20 - 00) Penalty, see Section 5 - 11 Sec. 5 - 13. Special rules for government entities. Nothing herein requires the city to apply the provisions of these articles to a government entity if the city determines that it is not in the public interest to do so, and nothing in this chapter shall be read to require a government entity to comply with this chapter, where the city cannot enforce the chapter against such entity as a matter of law. (Ord. No. 00 - 31, § 1, 6 - 20 - 00) Secs. 5 - 14. — 5 - 15. Reserved. IIB. SPECIAL RULES APPLICABLE TO OPEN VIDEO SYSTEMS AND OPEN VIDEO SYSTEM OPERATORS Sec. 5 - 16. Application for a franchise. (1) Contents of application for initial or renewal franchise . In order to obtain an initial or renewal f ranchise, an operator of an open video system must apply for a franchise. The application must contain the following information, and such information as the city may from time to time require. (A) Identity of the applicant, the persons who exercise wor king control over the applicant and the persons who control those persons, to the ultimate parent. (B) A proposal for construction of the open video system that sets forth at least the following: 1. A description of the services that are to be provi ded over the facility. 2. The location of proposed facility and facility design, including a description of the miles of plant to be installed, where it is to be located, and the size of facilities and equipment that will be located in, on , over, or above the rights - of - way. 3. Identification of the area of the city to be served by the proposed system, including a description of the proposed franchise area's boundaries. (C) A description of the manner in which the system will be i nstalled, and the time required to construct the system, and the expected effect on right - of - way usage, including information on the ability of the rights - of - way to accommodate the proposed system, including, as appropriate given the system proposed, an es timate of the availability of space in conduits and an estimate of the cost of any necessary rearrangement of existing facilities. (D) A description, where appropriate, of how services will be converted from existing facilities to new facilities, and wh at will be done with existing facilities. (E) Proof in the form of financial state - ments, attested to by a certified public accountant, that the applicant has the financial resources to complete the proposed project, and to construct, operate and repair the proposed facility over the franchise term. It is not the intent of the city to require an applicant to prove that the services it proposed to offer will succeed in the marketplace. (F) Proof that applicant is technically qualified to construct, o perate and repair the proposed facility. At a minimum, the applicant must show that it has experience or resources to ensure that work is to be performed adequately, and can respond to emergencies during and after construction is complete. (G) Proof tha t the applicant is legally qualified, which proof must include a demonstration that the applicant: 1. Has received, or is in a position to receive, necessary authorizations from state and federal authorities; Boynton Beach Code 16 2. Has not engaged in conduct (4) City review . The city may request such (fraud, racketeering, violation of antitrust laws, additional information as it finds necessary, and consumer protection laws, or similar laws) that allows require such modifications to the application as may city to conclude the applicant cannot be relied upon be necessary in the exercise of the city's authority to comply with requirements of franchise, or ov er open video systems. Once the information provisions of this article; required by the city has been provided, the application shall be promptly reviewed and shall be 3 . Was not a convicted vendor granted if the city finds that: thirty - six (36) months or fewer prior to the date of the application pursuant to Chapter 287, Florida Statutes, (A) The applicant has the qualifications to or was removed from the convicted vendor list construct, operate and repair the sys tem proposed in pursuant to Section 287.133, Florida Statutes; conformity with applicable law. The city shall provide a reasonable opportunity to an applicant to 4. Is willing to e nter into a franchise, show that it would be inappropriate to deny it a to pay required compensation and to abide by the franchise under Section 5 - 16(1)(G)2, by virtue of the provisions of applicable law, including those relating particular circumstances surrounding t he matter and to the construction, operation or maintenance of its the steps taken by the applicant to cure all harms facilities, and has not entered into any agreement that flowing therefrom and prevent their recurrence, the would prevent it fro m doing so. lack of involvement of the applicant's principals, or the remoteness of the matter from the operation of an (H) An affidavit or declaration of the open video system. An applicati on for a franchise applicant or authorized officer thereof certifying the area shall not be granted if the franchisee has no plans truth and accuracy of the information in the for constructing a system within the entire area for application, and certifying that the application meets which the franchise is sought. all requirements of applicable law. (B) The applicant accepts the (2) Addit ional information regarding affiliates; modifications required by the city to its proposed presumptions. To the extent that the applicant is in system. This section shall not be read to authorize the any respect relying on the financial or technical city to exercise authority it does not otherwise have resources of another person, including another under applicable law. affiliate, the proofs required by Section 5 - 16(1)(C) - (E) should b e provided for that person. An applicant (C) The applicant enters into a franchise will be presumed to have the requisite financial, or agreement and complies with any conditions technical or legal qualifications to the extent such precedent to its effectiveness. qualifications have been reviewed and approved by a state agency of competent jurisdiction; or if applicant (D) In the ca se of a transfer, the city must i s a holder of a franchise in the city for a cable system also determine that: or open video system, and conduct under such other franchise provides no basis for additional 1. There will be no adverse effect on investigation. the public interest, or the city's interest in the franchise; (3) Applications for transfer . An application for a transfer of a franchise must con tain same infor - 2. Transferee agrees to be bound by mation required by Section 5 - 16(1), except that, if the all the conditions of the franchise and to assume all transferor submitted an application pursuant to th e obligations of its predecessor; and Section 5 - 16(1), to the extent information provided by the transferor under Section 5 - 16(1) remains 3. Any outstanding compliance and accurate, the transferee may simply cross - reference compensation issues are resolved or preserved to the the earlier application. satisfaction of the city. 2000 S - 13 Cable Systems and Open Video Systems 17 (E) An applicant shall not be issued a franchise if it files, or in the previous three years, 2000 S - 13 filed materially misleading information in a franchise ( 6) Customer Service Standard Certification . application; or intentionally withheld information that An open video system that enters into an agreement the applicant lawfully is required to provide. to comply with the customer service standards applicable to cable systems may be certified by the (5) Compensation . Every operator of an open city as "Consumer Friendly - CITY OF BOYNTON video system shall pay compensation to the city as BEACH" for so lon g as it complies with those follows: requirements. (A) To the extent that the system is used to (7) Every cable or open video system and every provide cable services: a percentage of gross cable or open video system operator shall be required revenues (as that term is defined in Article IIC as if to interconnect with every other cable or open video the open video system operator were a cable operator) system and cable or open video system operator each quarter equal to the gross revenue percentage within the city on fair and reasonable terms for paid by any cable operator for the same quarter. In purposes of providing PEG and I - Net services. addition, unless a franchise agreement provides (Ord. No. 00 - 31, § 1, 6 - 20 - 00) Penalty, see Section otherwise, an open video system operator shall pay to 5 - 11 the city, at a time directed by the city, an amoun t equal to the highest amount contributed by any cable operator under its franchise for and in support of Secs. 5 - 17 – 5 - 20 Reserved. public, educational and government use (including institu - tional network use) of its cable system. To the extent that a cable operator is providing ot her support IIC. SPECIAL RULES APPLICABLE for public, educational or governmental use, the TO CABLE TELEVISION SYSTEMS operator must duplicate that support within a time and in a manner directed by the city, or provide a cash equivalent acceptable to the city. In applying this Sec. 5 - 21. Definit ions. section, the city shall ensure that the obligations borne by the open video system operator are no Access channel means any capacity on a cable greater or lesser than the obligation imposed upon the system set aside by a franchisee for public, cable operator providing the greatest benefits to the educational, or governmental use. community. The compensation required under this section or specified in a franchise shall increase as the Basic cable service or basic service means any compensation that a cable operator is required to service tier that includes the retransmission of local provide (in cash and in other forms) increases. television broadcast signals. (B) To the extent that the open video Cable Act means the Cable Communications system is used for the provision of Policy Act of 1984, 47 USC 521 et seq ., as amended telecommunications services, the open video system by the Cable Television Consumer Protection and opera tor shall pay the fee required of a Competition Act of 1992, as further amended by the telecommunications service provider. Telecommunications Act of 1996, as further amended (C) Such other compensation as the city fr om time to time. may charge in the future, consistent with federal or state law, including fees imposed upon open video Equitable price means fair market value adjusted system lessees. downward for the harm to the city or subscribers, if any, resulting from a franchisee's breach of its franchise agreement or violation of this chapter and as further adjusted to account fo r other equitable factors that may be considered consistent with 47 USC 547. Boynton Beach Code 18 Fair market value means the price for the cable revenues; revenues from program guides; and system valued as a going concern but with no value revenues from home shopping channels. Home allocated to the franchise itself. shopping revenue shall be based on the number of homes in a zip code area provided that where a Governmental access channel means any common zip code serves more than one city, the capacity on a cable system set aside by a franchisee revenues from that zip co de shall be allocated based for government use. on the number of homes in the zip code area attributable to the city divided by the total homes in Gross revenues means any and all cash or other the zip code area. This provision shall be read broadly consideration of any cable operator of a cable system to prevent the avoidance of franchise fees by a cable in any way derived from the operation of that cable operator through ar rangements with affiliates. Gross sy stem to provide cable services in the franchise revenues shall not include any taxes on services area. Gross revenues include, by way of illustration furnished by a franchisee which are imposed directly and not limitation, monthly fees charged subscribers on any subscriber or user by the state, city, or other for any basic, optional, premium, per - channel, or per - governmental unit and which are collected by a program service; installation, disconnection, franchisee on beha lf of said govern - mental unit; bad reconnection, and change - in - service fees; leased debt expense; subscriber deposits in segregated channel fees; late fees and administrative fees; accounts; or copyright fees. If an amount written off revenues received from programmers for carriage of as bad debt is recovered, or if a deposit is applied to programming on the cable system (excluding money unpaid service revenues, said amount shall be received from programmers which is passed through included in the g ross revenue base. to offse t the cost of launching the service including equipment expense and cost, advertising expense as well as other pass through incomes for advertising or marketing such programming); revenues from rentals or sales of converters or other equipment; advertising 2000 S - 13 Non - cable service means any service that is subscriber. authorized to be distributed over the cable system, (Ord. No. 00 - 31, § 1, 6 - 20 - 00) other than a cable service. Public access channel means any capacity on a Sec. 5 - 22. No exclusivity. cable system set aside by a franchisee fo r use by the general public, including groups and individuals, and A franchisee may not require a subscriber or a which is available for such use on a non - building owner or manager to enter into an exclusive discriminatory basis. contrac t as a condition of providing or continuing service. However, nothing herein prevents a fran - Service tier means a package of two or more chisee from entering into an otherwise lawful, cable services for which a separate charge is made by mutually desired exclusive arrangement with a the franchisee, other tha n a package of premium and building owner or manager of a multiple dwelling pay - per - view services that is not subject to rate unit or commercial su bscriber. regulation under the Cable Act and applicable FCC (Ord. No. 00 - 31, § 1, 6 - 20 - 00) Penalty, see Section regulations because those services are also sold on a 5 - 11 true à la carte basis. Subscriber means the city, any government Sec. 5 - 23. Relation to 47 USC 545 — 546. entity o r any person who legally receives any cable service from a cable operator delivered over that This Article IIC shall be read and applied so that cable operator’s cable system. it is consistent with Sections 625 and 626 of the Cable Act, 47 USC 545 — 546. User means a person or the city utilizing a (Ord. No. 00 - 31, § 1, 6 - 20 - 00) channel, capacity or equipment and facilities for purposes of producing or transmit ting material, as contrasted with the receipt thereof in the capacity of a Cable Systems and Open Video Systems 19 Sec. 5 - 24. Applications for grant, renewal, or the persons who control those persons, to the ultimate modification of franchise. paren t. (1) Written application. (B) Identification of the area of the city to be served by the proposed cable system, including a (A) A written application shall be filed description of the proposed franchise area's with the city for grant of an initial franchi se; renewal boundaries. of a franchise under 47 USC 546(a) - (g); or modification of a franchise agreement pursuant to this (C) A detailed description of the physical chapter or a franchise agreement. A request for facilities proposed, which shall include at least the renewal may also be filed informally, pursuant to 47 following: USC 546(h), as provided in Section 5 - 24(5). 1. A description of the channel (2) Contents of applications. A request for capacity, technical design, performance character - proposals for a franchise, including for a renewal istics, head - end, access (and institutional network) franchise under 47 USC 546(c), shall require, and any facilities and equipment. application submitted pursuant to this Section 5 - 24(1) (and expressly not an informal renewal applicat ion 2. The location of proposed facility submitted pursuant to 47 USC 546(h)) shall contain, and facility design, including a d escription of the at a minimum, the following information: miles of plant to be installed, where it is to be located, and the size of facilities and equipment that will be (A) Identity of the applicant, the persons located in, on, over, or above the rights - of - way. who exercise working control over the applicant, and 3. A description of the manner in required to construct the system, and the expected which the system will be installed , and the time effect on rights - of - way usage, including information on the ability of the rights - of - way to accommodate the proposed system, including, as appropriate given 2000 S - 13 the system proposed, an estimate of the availability of space in conduits and an estimate of the cost of any necessary rearrangement of existing facilities. 4. A description, where appropriate, of how services will be converted from existing facilities to new facilities, and what will be done with existing facilities. (D) A demonstration of how the applicant will reasonably meet the future cable - related needs and interests of the community, including descriptions of the capacity, facilities and support for public, educa tional, and governmental use of the cable system (including institutional networks) applicant proposes to provide and why applicant believes that the proposal is adequate to meet the future cable - related needs and interests of the community. (E) A demon stration of the financial qualifications of the applicant, including at least the following: 1. The proposed rate structure, including projected charges for each service tier, installation, converters, and all other proposed equipment or services; 2. A financial statement attested to by a certified public accountant demonstrating the applicant's financial ability to complete the construction and operation of the cable system proposed; and 3. Pro forma financial projections for the proposed franc hise term, including a statement of projected income, and a schedule of planned capital additions, with all significant assumptions explained in notes or supporting schedules. (F) A demonstration of the applicant's technical ability to construct and/or operate the proposed cable system; Boynton Beach Code 20 (G) Proof that the applicant is legally qualified, which proof must include a demonstration 2000 S - 13 that the applicant: 1. Has received, or is in a position to receive, necessary authorizations from state and federal authorities; 2. Has not engaged in conduct (fraud, racketeering, violation of antitrust laws, consumer protection laws, or similar laws) that allows city to conclude the applicant cannot be relied upon to comply with requirements of franchise, or provisions of this article; 3. Was not a convicted vendor thirty - six (36) months or fewer prior to the date of the application pursuant to Chapter 287, Florida Statutes, or was removed from the convicted vendor list pursuant to Secti on 287.133, Florida Statutes; 4. Is willing to enter into a franchise, to pay required compensation and to abide by the provisions of applicable law, including those relating to the construction, operation or repair of its facilities; and has not enter ed into any agreement that would prevent it from doing so; and 5. The applicant must not have submitted an application for an initial or renewal franchise to the city, which was denied on the ground that the applicant failed to propose a cable system m eeting the cable - related needs and interests of the community, or as to which any challenges to such franchising decision were finally resolved (including any appeals) adversely to the applicant, within three (3) years preceding the submission of the appli cation. The city shall provide a reasonable opportunity to an applicant to show that it would be inappropriate to deny it a franchise under Section 5 - 24(2)(G)2., by virtue of the particular circumstances surrounding the matter and the steps taken by the applicant to cure all harms flowing therefrom and prevent their recurrence, the lack of involvement of the applicant's principals, or the remoteness of the matter from the operation of a cable system. (H) To the extent that the applicant is in any respect relying on the financial or technical resources of another person, including another affiliate, the proofs required pursuant to Sections 5 - 24(2)(E) and (F) should be provided for that person. (I) A description of the applicant's prio r experience in cable system ownership, construction, and operation, and identification of cities and counties in Florida in which the applicant or any of its principals have a cable franchise or any interest therein, provided that an applicant that holds a franchise for the city and is seeking renewal of that franchise need only provide this information for other cities and counties in Florida where its franchise is scheduled to expire during the twelve (12) month period prior to the date its application i s submitted to the city and for other cities and counties in Florida where its franchise had been scheduled to expire during the twelve (12) month period after the date its application is submitted to the city. If an applicant has no other franchise in Flo rida, it shall provide the information for its operations in other states. (J) An affidavit or declaration of the applicant or authorized officer thereof certifying the truth and accuracy of the information in the application, and certifying that the ap plication meets all requirements of applicable law. (3) Procedure for applying for grant of a franchise, other than a Cable Act renewal franchise. (A) A person may apply for a franchise in response to a request for proposals ("RFP") issued by the city . Any response to an RFP shall contain the information required by Section 5 - 24(2), and such other information as the RFP may require, and must be submitted in accordance with the restrictions in the RFP. A properly filed response to an RFP shall be evalua ted in accordance with Section 5 - 24(3)(C). The city may conduct such investigations from time to time as may be appropriate to establish RFP requirements. (B) Notwithstanding the provisions of Section 5 - 24(3)(A), a person may apply for an initial franch ise by submitting an unsolicited application Cable Systems and Open Video Systems 21 containing the information required in Section 5 - pursuant to Section 5 - 24(3)(C). Prior to evaluating 24(2) and requesting an evaluation of that application that a pplication, the city may conduct such investigations as are necessary to determine whether complaints , billing practices, and the like, has been the application satisfies the standards set forth in reasonable in light of the needs and interests of the Section 5 - 24(3)(C), including by commencing a communities served; proceeding to identify the future cable - related needs and interest s of the community. It also may seek 3. Whether the applicant has the additional applications prior to evaluating the financial, technical, and legal qualifications to hold a application. An applicant for an initial franchise shall cable franchise; be provided an opportunity to amend its application in light of the result of any investigation conducted 4. Whether the applicat ion satisfies by the c ity, prior to evaluation of that application any minimum requirements established by the city pursuant to Section 5 - 24(3)(C). under this article or in the RFP or and is otherwise reasonable to meet the future cable - related needs and (C) In evaluating an application for a interests of the community, taking into account the franchise, the city shall consider, among other things, cost of meeting such needs and int erests; the following factors: 5. Whether, to the extent not 1. The extent to which the applicant considered as part of Section 5 - 24(3)(C)4., the has substantially complied with the applicable law applicant will provide adequate public, educational, and the material terms of any existing cable franchise and governmental use capacity, facilities, or financial for the city; support; 2. Whether the quality of the applicant's service under any existing franchise in the city, including signal quality, response to customer 2000 S - 13 6. Whether issuance of a fra nchise is in the public interest considering the immediate and future effect on the rights - of - way and private property that would be used by the cable system, including the extent to which installation or maintenance as planned would require replacement of property or involve disruption of property, public services, or use of the rights - of - way; and the comparative superiority or inferiority of competing applications; and 7. Whether the approval of the application may eliminate or reduce competition in t he delivery of cable service in the city. (D) If the city finds that it is in the public interest to issue a franchise considering the factors set forth above, and subject to the applicant's entry into an appropriate franchise agreement, it shall issue a franchise. If the city denies a franchise, it will issue a written decision explaining why the franchise was denied. Prior to deciding whether or not to issue a franchise, the city shall hold one or more public hearings or implement other procedures unde r which comments from the public on an application may be received as required by state or federal statute. The city also may grant a franchise based on its review of an application without further proceedings and may reject any application that is incompl ete or fails to respond to an RFP. (4) Procedure for applying for grant of a Cable Act renewal franchise. Requests for renewal under the Cable Act shall be received and reviewed in a manner consistent with Section 626 of the Cable Act, 47 USC 546. It is the proposal submitted by a franchisee under 47 USC 546(b), and not the request for commence - ment of the renewal proceedings submitted under 47 USC 546(a), that must contain the information required under Section 5 - 24(2). If neither a franchisee nor th e city activates in a timely manner, or can activate the renewal process set forth in 47 USC 546(a) - (g) (including, for example, if the provisions are repealed), and except as to applications submitted pursuant to 47 USC 546(h), the provisions of Section 5 - 24(3) shall apply and a renewal request shall be evaluated using the same criteria as any other request Boynton Beach Code 22 for a franchise. The following requirements shall (B) If an administrative hearing is com - apply to renewal requests properly submitted menced pursuant to 47 USC 546(c), the franchisee’s pursuant to the Cable Act: application shall be evaluated considering such matters as may be considered consistent with federal (A) If the provisions of 47 USC 546(a) - (g) law. The following p rocedures shall apply: are properly invoked, the city shall issue an RFP after conducting a proceeding to review the franchisee’s 1. The proceeding shall be past performance and to identify future cable - related conducted with all deliberate speed in accordance community needs and interests. The city shall mak e with such lawful procedures as the city may adopt by available for review by a franchisee the results of the resolution. city's review and ascertainment proceedings. The city shall establish deadlines and procedures for 2. The City Commission may responding to the RFP, may seek additional appoint an administrative hearing officer or officers information from the franchisee related to the city’s or may conduct the administrative hearing itself. The ev aluation of the proposal given the standards for entity that will conduct the administrative hearing is review of that proposal under applicable law, and referred to as the "hearing officer." shall establish deadlines for the submission of that additional information. Following receipt of the 3. The hearing officer shall establish application responding to that RFP (and such a schedule for proceeding. The hearing officer shall additional information as may be provided in have the author ity to require the production of response to requests), the city commission will evidence from any person as the interests of justice determine that the franchise should be renewed, or may require. Any order regarding the production of make a preliminary assessment that the franchise evidence may be enforced by a court of competent should not be renewed in accordance with the jurisdiction or by imposing appropriate sanctions in provisions of the Cable Act applicable to that the administrativ e hearing. preliminary decision. The preliminary determination shall be made by resolution. If the city commission 4. The hearing officer may conduct a determines that the franchise should not be renewed, pre - hearing conference and establish appropriate pre - and the franchisee notifies the city, either in its RFP hearing orders. Intervention by non - parties is not response or within thir ty (30) business days of the authorized except to the extent required by the Cable preliminary assessment, that it wishes to pursue any Act. rights to an administrative proceeding it has under the Cable Act, then the city shall commence an 5. The hearing officer shall require administrative proceeding after providing prompt the city and the franchisee to submit prepared public notice thereof, in accordance with the Cable testimony prior to the hearing. Unless the parties Act. If the city commission decides preliminarily to agree otherwise, the franchisee shall present evidence grant renewal, it shall prepare a final franchise first, and the city shall present evidence second. agreement that incorporates, as appropriate, the commitments made by the franchisee in the 6. Any reports or the transcript or application. If the franchisee accep ts the franchise summary of a ny proceedings conducted pursuant to agreement, and the final agreement is approved by 47 USC 546(a) shall be, for purposes of the adminis - the city commission, the franchise shall be renewed. trative hearing, regarded no differently than any other If the franchise agreement is not so accepted and evidence. The city and the franchisee shall be approved within the time limits established by 47 afforded fair opportunity for full participation in the USC 546(c)(1), renewal shall be deem ed proceedi ng, including the right to introduce evidence preliminarily denied, and an administrative (including evidence related to issues raised in the proceeding commenced if the franchisee requests it proceeding under subsection 47 USC 546(a)), to within thirty (30) business days of the expiration of require the production of evidence, and to question the time limit established by 47 USC 546(c)(1), witnesses. unless the time limit is extended by mutual agreement of the city and the franchisee. 2000 S - 13 Cable Systems and Open Video Systems 23 7. Following completion of any financial impact on the applicant if the modification hearing, the hearing officer shall require the parties to is submit proposed findings of fact with respect to the matters that the city is entitled to consider in 2000 S - 13 determining whether renewal ought to be granted. Based on th e entire record of the administrative hearing, the hearing officer shall then prepare written findings, and submit those findings to the city commission and to the parties (unless the hearing officer is the city commission, in which case the written findin gs shall constitute the final decision of the city). 8. If the hearing officer is not the city commission, the parties shall have thirty (30) calendar days from the date the findings are submitted to the city commission to file exceptions to those find ings. The city commission shall thereafter issue a written decision granting or denying the application for renewal, consistent with the requirements of the Cable Act and based on the record of such proceeding. A copy of the final decision of the city com mission shall be provided promptly to the applicant. (5) Informal applications for renewal . Notwithstanding the above, a cable operator may submit a proposal for renewal of a franchise pursuant to 47 USC 546(h) at any time, and the city may, after affo rding the public adequate notice and opportunity for comment, grant or deny such proposal. An application shall not be granted unless the city determines that it is in the public interest to do so. An application may be denied for any reason, without preju dice to the applicant's right to seek renewal under other provisions of this section. (6) Application for modification of a franchise. (A) An application for modification of a franchise agreement shall include, at minimum, the following information: 1. The specific modification requested; 2. The justification for the requested modification, including the impact of the requested modification on subscribers and others, and the approved or disapproved, demonstrated through, inter alia, submission of pro forma financial statements. 3. A statement indicating whether the modification is sought pursuant to Section 625 of the Cable Act, 47 USC 545, and, if so, a demonstration that the requested modification meets the standards set forth in 47 USC 545; 4. Any other information that the applicant believes is necessary for the city to make an informed determination on the application for modification; and 5. An affidavit or de claration of the applicant or applicant's authorized officer certifying the truth and accuracy of the information in the application, and certifying that the application is consistent with the requirements of applicable law. (B) A request for modificati on submitted pursuant to 47 USC 545 shall be considered in accordance with the requirements of that section. (7) Public hearings. An applicant shall be notified of any public hearings held in connection with the evaluation of its application and shall b e given a reasonable opportunity to be heard. In addition, prior to the issuance of a franchise, the city shall provide for the holding of a public hearing within the proposed franchise area, following notice to the public, at which each applicant and its application shall be examined and the public and all interested parties afforded a reasonable opportunity to be heard. (Ord. No. 00 - 31, § 1, 6 - 20 - 00) Penalty, see Section 5 - 11 Sec. 5 - 25. Construction provisions. (1) System construction schedule. Ev ery franchise agreement shall specify the construction schedule that will apply to any required construction, upgrade, or rebuild of the cable system. The schedule shall provide for prompt completion of the project, considering the amount and type of const ruction required. Boynton Beach Code 24 (2) Use of franchisee facilities. The city shall upon any poles or in any conduit owned by a have the right to install and maintain free of charge franchisee any wire and pole fixtures that do not unreasonab ly interfere with the cable system extension or installation costs, and franchisee requires operations of the franchisee. Provided that, if the city the potential subscriber to bear such costs, the time uses a franchisee's conduit or poles to install a cable for extension shall be measured from the date the system that competes with that franchisee in the subscriber agrees to bear such costs or, if a franchisee provision of cable service to residential subscribers, requires prepayment of all or a portion of the the franchise agreement may provide that the estimated costs, from the date the prepayment is franchisee may charge the city a fair market rate made. A franchisee that requires a potential pursuant to that franchise agreement. Franchisee shall subscriber to bear a portion of installation or notify the city when it enters into an agreement for extensio n costs must prepare a written estimate of use of its poles and conduits. Copies of agreements extension costs within seven (7) business days of a for u se of franchisee's conduits or poles in the public request for an installation or extension that would be rights - of - way or on other public property shall be subject to cost - sharing. available for review upon the city's request. A franchise agreement may include a provision under (C) Any cable system within the city shall which the city shall indemnify, defend and hold a meet or exceed the technical standa rds set forth in 47 franch isee harmless for all claims arising out of the CFR 76.601 and any other applicable technical city's use of that franchisee's poles and conduits standards. where the franchisee and the city do not have a joint pole or conduit use agreement. (D) A franchisee shall perform all tests necessary to demonstrate compliance with the (3) Provision of service/quality of service . In requirements of the franchise agreement and other addition to satisfy ing such requirements as may be technical and performance standards est ablished by established in a franchise, every cable system shall be applicable law. Unless a franchise agreement or subject to the following conditions, except as applicable law provides otherwise, all tests shall be prohibited by federal law: conducted in accordance with federal rules and in accordance with the most recent edition of National (A) It is the policy of the city to ensure that Cable Television Association's Recommend ed every franchisee provide service in the fra nchise area Practices for Measurements on Cable Television upon request to any person or any government Systems , or such other manual as may be directed building. Each franchisee shall extend service upon under FCC regulations. A written report of any test request within its franchise area, provided that a results shall be filed with the city within seven (7) franchise agreement may permit a franchisee to calendar days of a request by the city. If a locati on require a potential subscriber to contribute a fa ir share fails to meet technical or performance specifications, of the capital costs of installation or extension as a the franchisee, without requirement of additional condition of extension or installation in cases where notice or request from city, shall promptly take such extension or installation may be unduly corrective action, and retest the locations. expensive. Service must be provided within time limits specified in Section 5 - 25(3)(B). (E) Every cable or open video system and every cab le or open video system operator shall be (B ) Except as a franchise agreement required to interconnect with every other cable or otherwise provides, a franchisee must extend service open video system and cable or open video system to any person or to any government building in the operator within the city on fair and reasonable terms franchise area which requests it within seven (7) for purposes of providing PEG and I - Net services. business days of the request, where service can be provided by activ ating or installing a drop; within 2000 S - 13 ninety (90) calendar days of the request where an extension of one - half mile or less is required; or within six (6) months where an extension of one - half mile or more is required. Provided that, in cases where a franchise agreement permits a franchisee to require a potential subscriber to bear a share of Cable Systems and Open Video Systems 25 (4) System maintenance . Scheduled maintenance shall be performed so as to minimize the effect of any necessary interruptions of cable service. 2000 S - 1 3 (5) Continuity of service. Each franchise agreement shall, during the t erm of the franchise, ensure that subscribers are able to receive continuous service and that, in the event the franchise is revoked or terminated, the franchisee may be obligated to continue to provide service for a reasonable period to assure an orderly transition of service from the franchisee to another entity. (Ord. No. 00 - 31, § 1, 6 - 20 - 00) Penalty, see Section 5 - 11 Sec. 5 - 26. Operation and reporting provisions. (1) Communication with regulatory agencies. If requested by the city in writing, a f ranchisee shall file with the city all reports required by the FCC including, without limitation, any proof of performance tests and results, Equal Employment Opportunity (EEO) reports, and all petitions, applications, and communications of all types direc tly related to the cable system, or a group of cable systems of which the franchisee's cable system is a part, submitted or received by the franchisee, an affiliate, or any other person on the behalf of the franchisee, either to or from the FCC, the Securi ties and Exchange Commission, or any other federal or state regulatory commission or agency having jurisdiction over any matter affecting operation of the franchisee's cable system. Provided that, nothing herein requires the franchisee to produce regulator y or court filings that are treated by the agency or court as confidential, such as Hart - Scott - Rodino Act filings. Nothing in this section affects any rights the city may have to obtain books and records under Article II. (2) Reports . (A) If request ed by the city in writing within forty - five (45) calendar days after the end of each calendar quarter, a franchisee shall submit a report to the city containing the following information, within thirty (30) calendar days of such written request: 1. The number of service calls (calls requiring a truck roll); and 2. The number and type of outages known by the franchisee for the prior quarter, identifying separately the following: a. Each planned outage, the time it occurred, its durat ion, and the estimated area affected; b. Each known unplanned outage, the time it occurred, its estimated duration and the estimated area affected, and if known, the cause; c. The total estimated hours of known outages. An outage is a loss of so und and video on all channels. (B) Upon written request of the city, no later than ninety (90) calendar days after the end of its fiscal year, a franchisee shall submit a written report, within forty - five (45) calendar days of such request, tha t shall contain such information as may be required from time to time by the city, and at least the following, unless the city waives the requirement: 1. A summary of the previous year's activities in the development of the cable system, including desc riptions of services begun or discontinued, the number of subscribers gained or lost for each category of cable service; 2. A summary of service calls for which records are required under Section 5 - 26(3)(A), identifying both the number and nature of th e service calls received and an explanation of their dispositions, if any; 3. A revenue report from the previous fiscal year for the cable system, audited by a certified public accountant; 4. An ownership report, indicating all persons who at the time of filing control or own an interest in the franchisee of ten percent (10%) or more; Boynton Beach Code 26 5. A list of officers and members of affiliates directly involved in the operation or the the board of directors of the franchisee and any maintenance of the cable system; (B) Records of outages known to the 6. An organizational chart showing franchisee, with information suffic ient to allow a all corporations or partnerships with more than a ten franchisee to prepare the reports required in this (10) percent interest ownership in the franchisee, and section; the nature of that ownership interest (limited partner, general partne r, preferred shareholder, etc.); and (C) Records of service calls for repair and showing the same information for each corporation or maintenance indicating the date and time, if available, partnership that holds such an interest in the service was requested, and date and time, if available, corporations or partnerships so identified and so on service was schedule d (if it was scheduled), and the until the ultimate corporate and partnership interests date and time, if available, service was provided, and are identif ied; (if different) the date and time the problem was solved, if available; and 7. An annual report of each entity identified in Section 5 - 26(2)(B)6. which issues an (D) Records of installation/reconnection annual report; and requests for service extension, indicating da te of request, date of acknowledgment, if available, and the 8. A complete report on its plant. date and time, if available service was provided. This plant report shall state the physical miles of (Ord. No. 00 - 31, § 1, 6 - 20 - 00) plant construction and plant in operation during the prior calendar year categorized as aerial and underground, provide revisions to the cable system Sec. 5 - 27. Rate regulation and consumer maps filed with the city, and report the results of protection. appropriate electronic measurements to show conformity with FCC technical standards. (1) Scope and applicability . The city reserves all rig hts to implement and impose regulation of a 9. A report showi ng, for each cable franchisee's rates and charges to the maximum extent customer service standard in force, the franchisee’s permitted by law, and may do so by amendment to performance with respect to that standard for each this chapter, by amendment to a franchise agreement, quarter of the preceding year. In each case where or in any other lawful manner. franchisee concludes it did not comply fully, the franchisee will describe the corr ective actions it is (2) Rate regulation pro cedures . Rate taking to assure future compliance. regulation shall be performed in accordance with the rules and regulations of the FCC. The city manager, 10. Notwithstanding the above, once or his designee, may take any required steps to file the information required by Sections 5 - 26(2)(B)4. - 6. complaints, toll rates, issue accounting orders or take has been filed once, it need only be refiled if it any other steps required to comply with FCC changes. regulations. The city commission shall be responsible for issuing final rate orders that establish rates or (3) Records Required. A franchisee shall at all order refunds. No rate may be put into effect without times maintain: the prior review and approval of the city, except as federal law may otherwis e require. (A) Records of all service calls received with information sufficient to allow the franchisee to (3) Rate discrimination prohibited. Except to prepare the reports required in this section; the extent the city may not enforce such a requirement, a franchisee is prohibited from discriminating in its rates or charges or from granting 2000 S - 13 undue preferences to any subscriber, potential subs criber, or group of subscribers or potential Cable Systems and Open Video Systems 27 subscribers; provided, however, that a franchisee may offer temporary, bona fide promotional discounts in order to attract or maintain subscribers, so long as 2000 S - 13 suc h discounts are offered on a non - discriminatory basis to similar classes of subscribers throughout the franchise area; and a franchisee may offer discounts for the elderly, the disabled, or the economically disadvantaged; and such other discounts as it is expressly entitled to provide under federal law, if such discounts are applied in a uniform and consistent manner. A franchisee shall comply at all times with all applicable federal, state, and city laws, and all executive and administrative orders relatin g to non - discrimination. (4) Cable consumer protection standards. Each franchisee must satisfy cable consumer protection standards established by the city from time to time by ordinance or by resolution. In addition, each franchisee shall at all times s atisfy any additional or stricter requirements established by applicable law including, without limitation, FCC customer service standards and consumer protection laws. (Ord. No. 00 - 31, § 1, 6 - 20 - 00) Penalty, see Section 5 - 11 Sec. 5 - 28. Franchise fee. A franchisee shall pay to the city a franchise fee in an amount equal to five percent (5%) of gross revenues. (Ord. No. 00 - 31, § 1, 6 - 20 - 00) Penalty, see Section 5 - 11 Sec. 5 - 29. Transfers. (1) City approval required. No transfer shall occur withou t prior written notice to and approval of the city commission. Transfer without the prior written approval of the city shall be considered to impair the city's assurance of due performance. The granting of approval for a transfer in one instance shall not render unnecessary approval of any subsequent transfer. (2) Application. (A) The franchisee shall promptly notify the city of any proposed transfer. If any transfer should take place without prior notice to the city, the franchisee wil l promptly notify the city that such a transfer has occurred. (B) At least one hundred twenty (120) calendar days prior to the contemplated effective date of a transfer, the franchisee shall submit to the city an application for approval of the transfer . Such an application shall provide complete information on the proposed transaction, including details on the legal, financial, technical, and other qualifications of the transferee, and on the potential impact of the transfer on subscriber rates and serv ice. At a minimum, the following information must be included in the application, provided that a franchisee is not required to duplicate information that it submits to the city to comply with its obligations under federal or state law: 1. All informat ion and forms required under federal law or the equivalent of such forms if no longer required by federal law; 2. All information required in Sections 5 - 24(2)(A) and 5 - 24(2)(E) - J. of this chapter; 3. Any contracts or other documents that relate t o the proposed transaction, and all documents, schedules, exhibits, or the like referred to therein to the extent that such documentation is required by the FCC; 4. Any shareholder reports or filings with the Securities and Exchange Commission (SEC) th at discuss the transaction; 5. Other information necessary to provide a complete and accurate understanding of the financial position of the cable system before and after the proposed transfer; 6. Complete information regarding any potential impac t of the transfer on subscriber rates and service; Boynton Beach Code 28 7. A brief summary of the proposed transferee's plans for at least the next five (5) years regarding line extension, plant and equipment proposed transferee's commitment to cure such upgrades, channel capacity, expans ion or elimination noncompliance; whether the transferee owns or of services, and any other changes affecting or controls any other cable system in the city, and enhancing the performance of the cable system. whether operation by the transfer ee may eliminate or reduce competition in the delivery of cable service in (C) For the purposes of determining the city; and whether operation by the transferee or whether it shall consent to a transfer, the city or its approval of the transfer would adversely affect agents may inquire into all qualifications of t he subscribers, the public, or the city's interest under this prospective transferee and such other matters as the chapter, the franchis e agreement, or other applicable city may deem necessary to determine whether the law. transfer is in the public interest and should be approved, denied, or conditioned as provided under (4) Transferee's Agreement. Subject to any Section 5 - 29(3). The franchisee and any prospective transitional provisions that may apply, no application transferees shall assist the city in any such inquiry, for a transfer of a franchise shall be granted unless the and if they fail to do so, the request for transfer may transferee agrees in writing that it will abide by and be denied. acce pt all terms of this chapter and the franchise agreement, and that it will assume the obligations, (3) Determination by city. In making a liabilities, and responsibility for all acts and determination as to whether to grant, deny, or grant omissions, known and unknown, of the previous subject to conditions an application fo r a transfer of a franchisee under this chapter and the franchise franchise, the city shall consider the legal, financial, agreement for all and technical qualifications of the transferee to operate the cable system; any potential impact of the transfer on subscriber rates or services; whether the incumbent cable operato r is in compliance with its 2000 S - 13 franchise agreement and this chapter and, if not, the purposes, including renewal, unless the city, in its sole discretion, expressly waives this requirement in whole or in part. (5) Approval does not constitute waiver. Approval by the city of a transfer of a franchise does not constit ute a waiver or release of any of the rights of the city under this chapter or a franchise agreement, whether arising before or after the date of the transfer. (6) Exception for intra - company transfers. Notwithstanding the foregoing, a franchise agreeme nt may provide that transfers to affiliates of a franchisee shall be excepted from the requirements of Section 5 - 29(1) and (2) where the affiliate is wholly - owned and managed by an entity that will guarantee the performance under a franchise agreement; and , subject to any transitional provisions that may apply the transferee affiliate: (A) Notifies the city of the transfer at least sixty (60) calendar days before it occurs and, at that time provides the agreements and warranties required by this section, describes the nature of the transfer, and submits complete information describing who will have direct and indirect ownership and control of the cable system after the transfer; (B) Warrants that it has read, accepts and agrees to be bound by each and every term of the franchise and related amendment, regulations, ordinances and resolutions then in effect; (C) Agrees to assume all responsibility for all liabilities, acts and omissions known and unknown of its predecessor franchisees for all purposes, including renewal; (D) Agrees that the transfer shall not permit it take any position or exercise any right which could not have been exercised by its predecessor franchisees; (E) Warrants that the transfer will not substantially increase the financ ial burdens upon or substantially diminish the financial resources available to the franchisee (the warranty to be based on comparing the burdens upon and resources that will be Cable Systems and Open Video Systems 29 available to the transferee compared to its predecessors), or otherwise adversely affect the ability of the franchisee to perform; (F) Warrants that the transfer will not in any way adversely affect the city or subscribers (including by increasing rates); (G) Notifies the cit y that the transfer is complete within five (5) business days of the date the transfer is complete; and (H) Agrees that the transfer in no way affects any evaluation of its legal, financial or technical qualifications that may occur under the franchise or applicable law after the transfer, and does not directly or indirectly authorize any additional transfers. (Ord. No. 00 - 31, § 1, 6 - 20 - 00) Penalty, see Section 5 - 11 Sec. 5 - 30. Connections to cable system; use of antennae. (1) Subscriber right t o attach. To the extent consistent with federal law, subscribers shall have the right to attach VCRs, receivers, and other terminal equipment to a franchisee's cable system to receive services for which they paid. Subscribers also shall have the right to use their own remote control devices and converters, and other similar equipment to receive services for which they paid. (2) Removal of existing antennae. A franchisee shall not, as a condition of providing service, require a subscriber or potential su bscriber to remove any existing antenna, or disconnect an antenna except at the express direction of the subscriber or potential subscriber, provided that such antenna is connected with an appropriate device and complies with applicable law. (Ord. No. 00 - 3 1, § 1, 6 - 20 - 00) 2000 S - 13 Boynton Beach Code 30